The SMART Office responds to requests from the field regarding all matters related to the Sex Offender Registration and Notification Act (SORNA), Title 1 of the Adam Walsh Child Protection and Safety Act of 2006, and various topics related to sex offender management. We seek to foster a well-informed and accurate discussion of SORNA's requirements. Our staff help jurisdictions adopt SORNA provisions by reviewing the legislation a jurisdiction proposes and its existing statutes, policies, and procedures.

Since SORNA's enactment and the development of final guidelines in 2008, we have recognized many challenges that jurisdictions face when implementing the Act. Three major challenges are—

SORNA is generally designed to strengthen the effectiveness of sex offender registration and notification and to eliminate potential gaps and loopholes through which sex offenders could attempt to evade registration requirements or the consequences of registration violations. A common misconception is that SORNA's tiering structure is meant to help predict sexual reoffense and that it supersedes jurisdictions' existing risk assessment processes.

To implement SORNA, jurisdictions do not have to adopt any particular approach to labeling or categorizing sex offenders. A jurisdiction meets SORNA's requirements as long as its sex offenders are consistently subject to the same duration of registration, frequency of in-person appearances for verification, and extent of website disclosure that SORNA would require for offenders convicted of those sex offenses.

SORNA Tiering

Tier I: misdemeanor registration offenses, child pornography possession, and any other sex offenses that do not support a higher classification. Tier I offenders must register for 15 years with annual in-person verification.

Tier III: forcible sexual assaults regardless of the victim's age, sexual contact offenses against children younger than age 13, and nonparental kidnapping of minors. Tier III offenders must register for life with in-person verification every 3 months.

Jurisdictions must make certain registration information about tier II and tier III offenders available on their public websites, but may decide to exclude information about some tier I sex offenders.

Risk assessment processes are used in many jurisdictions for various reasons. These include determining the level of community notification required and aiding in making release decisions, filing civil commitment proceedings, structuring treatment programming, establishing supervision intensity, and, in a few instances, determining the duration of a sex offender's registration requirement and in-person reporting frequency. Most current sex offender registrations are triggered by a sex offender's conviction for the crime.

SORNA does not preclude the use of risk assessment tools for community notification purposes, particularly for the more active forms of notification (e.g., community meetings, fliers, door-to-door canvassing). However, to substantially implement SORNA, jurisdictions might need to include a broader class of sex offenders on their public registry websites. In all instances, jurisdictions may use risk assessment tools as a justification for increasing SORNA's minimum notification requirements.

Jurisdictions that use an assessment process to determine the duration of a sex offender's registration requirement and reporting frequency will need to alter their systems to make these requirements dependent on the crime conviction (matching the appropriate SORNA tier requirements). Jurisdictions may use risk assessment methods to increase these requirements as they see fit.

Retroactivity

Many jurisdictions struggle with the question of whether SORNA applies to sex offenders convicted before it was passed or before a jurisdiction has substantially implemented it. SORNA's final guidelines limit its retroactive reach. Jurisdictions must register sex offenders who were not required to register prior to SORNA's substantial implementation if those sex offenders are incarcerated, on supervision, or if they later reenter the system because of conviction for some other crime (whether or not the new crime is a sex offense). Jurisdictions are allowed to phase in SORNA registration requirements for these recaptured sex offenders. After a jurisdiction has substantially implemented SORNA, those sex offenders who are subject to retroactive application and who meet the tiering criteria should be registered as such:

It may not always be possible to obtain information about earlier sex offense convictions for those sex offenders reentering the system, particularly when they occurred many years ago and the criminal history information available may be uninformative regarding factors, such as the victim's age, that can affect SORNA's registration requirements. SORNA requires jurisdictions only to rely on the methods and standards they normally use in searching criminal records.

To help, the SMART Office developed a historical archive database of state statutes related to sex offenses, which obviates the need for intensive legal research on a local level. This resource is available on the Exchange Portal, to which the registry officials of all jurisdictions have access.

Juvenile Registration

A common misconception is that SORNA requires jurisdictions to register all juveniles who are adjudicated delinquent for sex offenses. In fact, SORNA requires juvenile registration only if the juvenile was at least 14 years old at the time of the offense and was adjudicated delinquent for committing (or attempting or conspiring to commit) a sexual act with another by force, by the threat of serious violence, or by rendering unconscious or drugging the victim.

Because of the severity of these offenses, these juvenile sex offenders would be categorized as tier III offenders and subject to applicable duration, in-person verification, and community notification requirements.

Whatever the challenges, SMART staff are available to help. By now, all states, territories, and tribes should have received an offer of assistance from their assigned SMART Office policy advisor. If you have questions about SORNA, the final guidelines, or SMART's role, please do not hesitate to contact us.